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Audio and Video Recordings in a Family Law Context

Posted By
Evans & Hubbard, Attorneys at Law

You suspect your teenage son is buying illegal drugs, so you put a recording
device on your home phone, to be able to monitor his calls without his
consent. That’s okay, right? It’s for your son’s own
good. But what if you want to record his cell phone calls, and you arrange
with the cell phone company to record all of his conversations because
after all, you pay for the phone, and it’s for his own good, right?
But what if your son is late for curfew, you go out looking for him, and
you see him talking to a person of questionable quality. No problem, you
whip out your cell phone, that wonderful smart phone that has audio recording
and video recording capacity, and you start recording your son and that
person of questionable quality. You can’t hear what they are saying
at first, and your son can’t see you, but you move closer and closer,
video recording and now you are starting to pick up audio. Sure enough,
the moment you feared is happening. Your son hands that questionable person
money, and then takes a small bag of white powder in exchange. It’s
still all good, right? It’s for his own good.

Maybe not.

Or maybe you are getting a divorce. You are standing outside your house,
and your wife opens the door, and gives a very intimate embrace to the
appliance repair man, far more intimate than what you have received in
a long time. You lift up your phone, flip on the video recorder, and record
the whole steamy conversation and the nonverbal communication. That’s
what those phones are for, right? Any one who looks up YouTube will see
video recordings of funny scenes when the other person doesn’t know
they are being recorded. Everybody does it, so it must be legal, right?

Maybe not.

You are recording the telephone call of your child when your child is talking
to the other parent, and you hear the other parent encouraging your child
to not obey the rules of your household. You later confront the other
parent with the evidence of the recording, and the other parent is outraged
that you intruded on a private conversation. You are in hot water, right?

Maybe not.

ORS 165.540(1)(a) prohibits a person from obtaining the whole or any part
of a telecommunication to which the person is not a participant,by means
of any device, unless consent is given by at least one person. ORS 165.535
defines “telecommunication” as the transmission of writing,
signs, signals, pictures and sounds of all kinds by aid of wire, cable
or other similar connection between the points of origin and receiption
of such transmission. There is a significant exception that this does
not apply to subscribers or members of their family who perform the acts
prohibited or if it takes place in your home.

In the example where you are recording the telephone call of your child
on your phone, it is probably legal to do so. You pay for the phone, you
are the subscriber, and it is a member of your family. Further, the recording
probably happened in your home. It may not be that clear, however. What
if you moved from another state, and retained your old phone number? At
that point, the signal may be crossing state lines as it is bounced back
and forth from satellite receivers. Your action may be covered under Oregon
law, which would allow the recording, or it may be covered under federal
law, which does not allow the recording, or it may be covered under the
law of the state that you came from, and which originates the signal.

That prohibition only relates to the recording of the conversation, however.
It does not apply if the phone line is simply open and someone else is
listening in the conversation as the phone is out of sight in your pocket.
Or if you keep a computer in your bedroom, and you use Skype. You can
call in to the computer, which is allowed because you are not recording
and then record what you hear going on in your bedroom. After all, you
are a participate in the conversation and are giving your consent. The
appliance repairman and your wife, however, have no idea that they are
being recorded.

What is less clear, however, is the frequent use of the video and audio
record function on most people’s cell phones. Few people are thinking
about whether they are legally recording when they are pulling out their
phones and videotaping every funny, or not so funny, thing that happens.
ORS 165.540(1)(c) prohibits obtaining or attempting to obtain the whole
or any part of a conversation by means of any device, if not all of the
participants have not specifically been informed that their conversation
is being obtained. There are significant exceptions to this rule, specifically
that it does not apply to subscribers or members of their family or if
it occurs in their own home; it does not apply to public or semipublic
meetings, such as government hearings, trials, public speeches rallies
and sporting or other events; it does not apply to regularly scheduled
classes or educational activities in public or private institutions; and
it does not apply to private meetings or conferences if all others involved
knew or reasonably should have known that the recording was being made.
What does that mean in the day and age of cell phone recordings? There
is not any Oregon case law that interprets this statute, particularly
in the very common use of recordings that are everywhere.

Going back to that first example: you record your son’s conversations
on your home phone. Not a problem as to the legality. You record your
son’s conversations on his cell phone. Probably permissible, assuming
that some other jurisdiction’s laws do not apply. Following your
son and video recording his interaction with the questionable quality
person? Probably permissible if you are not able to hear their conversation.
Once you come within range of being able to hear and record their conversation,
it is no longer legal to be recording that conversation.

What about the video recording in the bedroom of your wife and the appliance
repairman? It may violate laws against obtaining sexual images, but if
you are not seeing sexual images, and only see the outline of bodies on
the bed and hear the conversation, it is probably permissible. Does that
still apply to the front steps of your house? That’s less clear
as to whether that is still “in the home”, and there is recording
of the conversation. Still pictures? That’s permissible because
there is no conversation being obtained.

Recording your child’s conversation with his other parent? Permissible
under the Wiretap laws, but there is probably a provision in your divorce
judgment that prohibits you from monitoring or interfering with the conversation
between a parent and a child. You could still be in hot water for contempt
of court, just not criminally prosecuted.

There are certainly very appropriate times to bring out that cell phone
and specifically inform the parties in a meeting that you are recording
the meeting, such as a transition from one parent to another parent, when
there have been many problems in the past, and the court needs to adjust
the transition place or circumstances. If you specifically state that
you are going to record the conversation, and the person continues to
talk, there is implied consent by the act of going forward. It is not
sufficient, however, to simply record the meeting openly. You have to
specifically inform the person that their conversation is being recorded.
The other person doesn’t need to give consent but must be specifically
informed. There may also be appropriate circumstances, such as a parent
teacher meeting with both parents present, if there has been a history
of one parent being intimidating or threatening, so long as there is specifically
information that there is a recording.

The idea of a private meeting or conference where you should reasonably
expect that you will be recorded is likely to be an area that is going
to be challenged. At this point, there is very little reasonable expectation
of privacy when you are outside of your home. You are recorded when you
enter the parking lot of your office, you are recorded when you buy your
groceries, you are recorded when you are driving down the highway. You
are aware that many many people are using their phones to record events
that happen every day, maybe even recording you without your knowledge.
However, a coincidental interaction does not constitute a meeting, where
at this point you should have a reasonable expectation that there will
not be a recording unless there is specific information given. Where is
that fine line between a reasonable expectation of privacy unless there
is specific information given and the increasing use of recording devices
as a part of daily living? From a legal standpoint, it is still illegal
to videotape conversations, even if it is so commonly done then posted
on the Internet. If it is illegal behavior, even if everybody does it,
there may be a possibility that you will be the one that is the test case
for illegal recording, even if you believe it is for someone else’s
own good, or to catch someone in the act. That’s simply not a risk
worth taking.

Tigard Divorce Lawyers

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